Peo v. Jackson

23CA0814 Peo v Jackson 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0814

Adams County District Court No. 08CR3612

Honorable Kyle Seedorf, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph D. Jackson,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE SCHUTZ

Lipinsky and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Joseph D. Jackson, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 Defendant, Joseph D. Jackson, appeals the postconviction

court’s order denying his Crim. P. 35(a) motion. He claims that his

consecutive sentences are illegal under section 18-1-408(3), C.R.S.

2023, because they are based on offenses that he asserts occurred

in one criminal episode against a single victim. We disagree, and

we affirm the order.

¶ 2 According to the evidence presented at trial, Jackson

participated in the following series of acts: (1) beating a victim in a

bathtub with a gun; (2) transporting the bound victim in a van to a

remote location; (3) threatening the victim with a sword while

demanding that he remove his clothes; and (4) striking the victim

again and leaving him in a snowbank on the side of a road. See

People v. Jackson, slip op. at 1-2 (Colo. App. No. 10CA1419, Feb.

16, 2012) (not published pursuant to C.A.R. 35(f)) (Jackson I). A

jury found Jackson guilty of first degree assault, second degree

kidnapping, aggravated robbery, reckless endangerment, conspiracy

to commit aggravated robbery, conspiracy to commit second degree

kidnapping, and conspiracy to commit reckless endangerment. The

district court found extraordinary aggravating circumstances,

merged the conspiracy counts with the substantive counts, and

2

sentenced Jackson to a total of sixty‑eight years in the custody of

the Department of Corrections (DOC).

¶ 3 Jackson’s controlling sentences — (1) thirty-two years in the

DOC for class 3 felony first degree assault and (2) thirty-six years in

the DOC for class 2 felony second degree kidnapping — are each

authorized by law. See § 18-3-202(1)(a), C.R.S. 2023 (first degree

assault); § 18-3-302(1), (3), C.R.S. 2023 (second degree kidnapping);

see also § 18-1.3-401(1)(a)(V)(A), (10)(a), C.R.S. 2023 (presumptive

sentencing ranges; extraordinary risk crimes); § 18-1.3-406(1)(a),

(2)(a)(II)(C), (D), C.R.S. 2023 (sentences for crimes of violence).

¶ 4 On direct appeal, Jackson challenged the sentencing court’s

decision that these sentences should run consecutively. A division

of this court concluded that the sentencing court had not abused

its discretion. Jackson I, slip op. at 14-15. The division determined

that “the evidence supporting the first degree assault conviction

was independent of the evidence supporting the second degree

kidnapping conviction.” Id. at 15. We agree because the evidence

showing that Jackson struck the victim in a bathtub (causing a

brain bleed) is distinct from the evidence showing that he

transported the victim against his will in a van.

3

¶ 5 When a defendant is convicted of multiple counts committed

against a single victim, section 18-1-408(3) requires concurrent

sentencing only if (1) the counts are based on the same act or series

of acts arising from the same criminal episode, and (2) the evidence

supporting the counts is identical. See Juhl v. People, 172 P.3d

896, 901 (Colo. 2007). “The mere fact that the offenses took place

during one continuous criminal episode does not establish that they

were supported by identical evidence.” People v. Jurado, 30 P.3d

769, 773 (Colo. App. 2001).

¶ 6 Because Jackson’s offenses are not supported by identical

evidence, his consecutive sentences are legal. Accordingly, the

postconviction court’s order is affirmed.

JUDGE LIPINSKY and JUSTICE MARTINEZ concur.